Gempire Pty Ltd ATF the Trustee for Customs House Unit Trust (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a decision to refuse the nomination of an occupation by Gempire Pty Ltd ATF the Trustee for Customs House Unit Trust. The core of the dispute concerned whether the applicant had met the labour market testing requirements stipulated by migration law for the nominated position.

The Tribunal was required to determine if the applicant had satisfied the labour market testing condition under section 140GBA of the Migration Act 1958 (Cth). This involved assessing whether the applicant had provided sufficient evidence that a suitably qualified and experienced Australian citizen or permanent resident was not readily available to fill the nominated position, and whether this testing was conducted within the prescribed period and in the manner determined by legislative instrument LIN 18/036.

The Tribunal reasoned that section 140GBA mandates specific labour market testing unless certain exemptions apply, none of which were demonstrated by the applicant. The evidence provided, an advertisement in the Herald Sun, was found to be insufficient as it did not meet the requirements of LIN 18/036, particularly concerning the timeframe for testing and the demonstration of a genuine attempt to recruit locally. The Tribunal noted that the advertisement was placed in August 2018, but the prescribed period for labour market testing under LIN 18/036 is the four months ending on the day the nomination application is made. As the applicant failed to provide evidence that this testing was conducted within the relevant period, the Tribunal concluded that the labour market testing requirements were not met.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had not satisfied the applicable criteria for its approval.